Enter the 'ghost lawyers' and 'barefoot lawyers'

Enter the 'ghost lawyers' and 'barefoot lawyers'

Winahyo Soekanto, Lawyer, Jakarta

The current buzzword in campaigns for the protection of
consumers rights -- be they consumers of products and services or
consumers of arbitrary public policies -- is class action. The
term is fast gaining popularity, especially since the recent suit
filed by Jakarta-based NGOs representing flood victims against
Governor Sutiyoso over poor disaster preparedness in the capital.

Among the 30 plaintiffs are the Indonesian Corruption Watch,
the Indonesian Center for Environmental Law, the Urban Poor
Consortium, the Indonesian Forum for the Environment, the Jakarta
Pedicab Association and the Indonesian Consumers Foundation.

Being accused of failing to take adequate measures to
anticipate the disaster, Sutiyoso has gone on the record as not
only regretting the suit but also questioning its suitability.
After all, he argued, the disaster struck because of the weather.
He has also accused the NGOs of using the flood victims to
further their own interests.

A class action is a legal suit filed by a group of class
representatives whose interests have also been harmed, on behalf
of a greater number of victims (known as class members). Not many
such suits have taken place here in the past. In the past, any
legal moves against authorities would usually cause the public to
just shrug because of the "David vs. Goliath" image such actions
elicited.

More recently, however, there have been cases where David
prevailed. One such success story concerned the class action
filed by Slamet Tompel and Gatot Sudarto, residents of Karang
Anyar, Taman Sari, Central Jakarta. The plaintiffs represented 43
other residents who worked as scavengers and whose dwellings were
demolished by the Jakarta administration.

Slamet and Gatot were not lawyers, and their decision to
undertake the legal move earned them the title "ghost lawyers";
but they won the class action against the Jakarta governor, the
Central Jakarta mayor, PT Kereta Api Railway Company and the
Mobile Brigade of the National Police.

Another success story unfolded when an alliance of consumer
rights advocates, the Committee for the Advocacy Against the
Price Increase of LPG (KAPAK), led by the Indonesian Consumers
Foundation (YLKI), won its class action against Pertamina on Oct.
9, 2001. The Central Jakarta District Court ordered the state oil
company to revoke its arbitrary decision to increase the price of
Elpiji gas. The court also ordered the company to refund the
difference in the money that the consumers had paid for the gas.

Newsweek, in its March 4 edition, described a "legal
revolution" in Liushugouzi village in Shandong province, China.
Here, two farmers with limited knowledge of and experience with
the legal machinery defended fellow farmers who were beaten up by
thugs paid by the local administration to deal with late
taxpayers. The two farmers filed a suit for compensation for
their friends' injuries, and earned the nickname "barefoot
lawyers" from the weekly.

Why is class action gaining importance? Because the cases that
prompted them have usually been poorly matched fights.

There has always been an imbalance in the bargaining power of
consumers and producers because of the nature of the relationship
between the two, characterized by the almost unquestioning trust
(known as fiduciary relationship) consumers place in producers.

When one goes to a supermarket and buys a product, one does
not usually check whether its weight is really 500 grams, whether
it really is halal and free from additives, or whether it really
cleans one's clothes better than other products. One simply
trusts the producers' claims.

Given the increasing sophistication of the manufacturing
process, consumers are finding it even more difficult to
investigate whether those claims have any truth. Thus the "David
vs. Goliath" image.

Class action suits reflect people's growing confidence in
applying pressure on producers or policy makers found to have
neglected consumers' rights. It is a new venue for the public to
defend their rights. People are beginning to view class actions
as a part of the legal system that might be effective enough to
fight arbitrary actions by producers or officials.

Class action suits are provided through Chapter 1365 of the
Civil Code, which stipulates compensation by any party whose
actions cause a loss to another party. The other facilities for
the suits are in Law 14/1970 on the judiciary, Law No. 23/1997 on
environmental protection, and Law No. 8/1999 on consumer rights.

Supporters of class action suits are usually activists who act
as society advocates and public interest lawyers. They usually
believe that class action suits represent access to justice for
members of the public. Regrettably, only a few commercial lawyers
have expressed an interest in becoming public interest lawyers.

How does one go about filing a class action? Generally, a
class action suit should comply with a number of principles, the
first of which is "numerosity" -- the number of people attempting
legal action over the same subject should be so great that it
would be impractical and inefficient for the case to be filed
individually.

Second, class action representatives and members must share
the same facts and legal footing.

Third, there has to be a typicality of claim and argument.
They must have the same interests in the suit.

Finally, there has to be an adequacy of representation,
meaning that class representatives must honestly and justly and
able to protect the interests of those that they represent.
If those principles are adhered to, accusations that promoters of
class actions, such as NGO activists, are only seeking to further
their own interests could be deflected and the superiority of
class action suits could materialize.

For class action suits are indeed superior in certain terms:
they are more cost-effective, they lessen the burden on the court
of having to try the same case over and over if it were filed
individually and they offer class action members mutual support.
Besides, class action suits permit consumers to air their
opinions or complaints about their right to honest and accurate
information.

Yet the major glitch is that class action suits are often
blocked by parties arguing that there is no complete legal cover
for consumers pressing for their rights through such a
mechanism. Our law enforcers often bicker over the fact that only
the law on environmental protection has provisions for class
actions, while the law on consumers' rights does not.

The Supreme Court has reportedly taken steps to fill the legal
void, planning to issue a Supreme Court decree on class actions
to guide judges trying such suits. Our legislators should then
draft a law on class actions -- thus preventing years of hard
work by advocates of the Indonesian Consumers Foundation from
going down the drain because of the absence of adequate legal
cover.

Judges would also do well to heed the precedence set by the
Central Jakarta District Court, which backed the Elpiji
consumers' suit against Pertamina.

Then one day class action suits will really be a means for the
public and consumers to improve their bargaining position before
producers and policy makers.